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MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution for a Convention reason - whether the applicant was denied procedural fairness.

WAHY v Minister for Immigration [2003] FMCA 121 (17 April 2003)

WAHY v Minister for Immigration [2003] FMCA 121 (17 April 2003)
Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAHY v MINISTER FOR IMMIGRATION
[2003] FMCA 121



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution for a Convention reason - whether the applicant was denied procedural fairness.



Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

VBAC v Minister for Immigration [2003] FCA 205

Re Minister for Immigration & Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 [2003] HCA 1

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Paul v Minister for Immigration [2001] FCA 1196

Minister for Immigration v Khawar [2002] 187 ALR 574

Applicant:
WAHY



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ197 of 2002



Delivered on:


17 April 2003



Delivered at:


Sydney



Hearing dates:


18 March 2003 and 11 April 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented



Counsel for the Respondent:


Mr J Allanson



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 197 of 2002

WAHY


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is an Afghani of Hazara ethnicity and muslim Shiite religion. He comes from the Bamiyan Province. The applicant arrived in Australia on 16 August 2001. He lodged an application for a protection (Class XA) visa on 11 September 2001. This was not considered by the delegate for the Minister until 23 April 2002 when the delegate declined to grant a protection visa. On 24 April 2002 the applicant applied for a review of that decision by the Refugee Review Tribunal. The Tribunal considered the papers and arranged for an interview with the applicant. This took place on 24 June 2002. The Tribunal made its decision on 26 June 2002.

2. The applicant seeks review of the decision of the Refugee Review Tribunal from this court. He is unrepresented. The application which he made merely states:

"I am not satisfied with the RRT's decision. He didn't give me time that I say my reasons.

I have problems in my country, it is very dangerous for me if I go back."

3. The applicant did not file an affidavit but he sent a letter to the court on 11 September 2002 pointing out his fear of the Taliban and the Pashtuns, his fear of the Hezb-e-Wahdat Party in his home area, his problems with the area commander of his local area and his concern about danger from Sheikh Akbari.

4. The applicant's case was due to be heard in this court in October 2002 but it was adjourned because the applicant believed he had obtained legal representation and his representatives had sought access to the Tribunal's papers including the tape recording of the proceedings. The legal representation did not eventuate and the matter was set down for hearing in this court on 18 March 2003.

5. The applicant put his claim for asylum on four bases. The first was that he had a great and continuing fear of the Pashtun people in Afghanistan who he believed continued to mistreat Hazara people notwithstanding the defeat of the Taliban and the emergence of the interim government under President Hamid Karzai. The Tribunal's finding in this regard, which was reached after a discussion upon the country information at [CB 129], was that:

"The Tribunal finds, and this was not disputed by the applicant, that Bamiyan Province is now firmly in the hands of Hazara forces under the command of Karim Khalili, the Hazara Governor of Bamiyan, who has now been appointed one of the country's vice presidents. In the light of this, the Tribunal finds that the applicant no longer has a well founded fear of persecution from the Taliban for reason of his race or his religion."

I do not believe that the Tribunal was here confining itself to the Taliban but was including within that definition Pashtuns formerly associated with the Taliban, as they are referred to in the previous paragraph to the one quoted.

6. The second ground related to the applicant's imputed association with Sheikh Akbari. The applicant advised the Tribunal that people in the area in which he lived supported Akbari during the Taliban era. Akbari had been in dispute with the Hezb-e-Wahdat Party which was now in power. The applicant pointed out that Sheikh Akbari had escaped from the area and he believed that this would encourage others to accuse him of treason. In this regard the Tribunal made the following finding:

"The Tribunal accepts the applicant's claims that he played no political role in any conflict between Sheikh Akbari and the Hezb-e-Wahdat Party. In the light of the absence of evidence of any continuing conflict between factions of the Hezb-e-Wahdat Party, the Tribunal finds that the applicants fear that he might be harmed because of a perceived association with Akbari because of the strong support Akbari had in Waras, the area from which the applicant comes, to be unfounded."

7. The third reason concerned the fear which the applicant had that he would be harmed by a local commander in the Wahdat forces who was a rival for his wife's hand. The Tribunal's finding on that matter was as follows:

"The Tribunal has considered the applicant's concerns that he might be harmed by a rival for his wife's hand and that this rival has been a commander in the Wahdat forces. The Tribunal finds that any harm the applicant might suffer as a result of this would be for reasons of personal animosity and not for any convention reason."

8. Finally, the applicant submitted to the Tribunal that the circumstances as they existed in Afghanistan were still dangerous outside Kabul. He explained that he had no family left in his home town. Two of his brothers had been killed by the Taliban, another brother had disappeared some four years ago and there had been no news of his sister for two years or any news of his parents. He said that he had no land or animals from which he could live and that his family was scattered and there would be no-one there to help him or support him.

9. The Tribunal noted these circumstances and found:

"The Tribunal accepts that the applicant has legitimate concerns with regard to his lack of family support and material resources should he return to Afghanistan. However, such matters are not covered by the convention and cannot form the basis of the grant of a protection visa."

10. The applicant did not dispute the essence of the country information relied on by the Tribunal. At the hearing he took issue with the conclusions drawn by the Tribunal from that information. The interpretation of the accepted facts about the situation in a particular country is the essence of the Tribunal's task. The applicant did not set out to allege there was no basis for the Tribunal's findings rather that the evidence would indicate that a contrary one would be more likely.

11. In the event, the hearing did not traverse these matters at any length. The applicant concentrated on a complaint that he had raised in his application that the Tribunal did not give him sufficient time to articulate his case. He explained that the whole process in the Tribunal had taken approximately half an hour of which ten minutes was taken up with introductions and explaining to him the law. He said that thereafter the Tribunal had produced its findings in two days. The first complaint evidenced a lack of procedural fairness and the second combined with the first indicated to him pre-judgment by the Tribunal.

12. I asked the applicant if he was able to explain to me the way in which the Tribunal had prevented him from speaking. I asked if the Tribunal had told him that he was not permitted to say any more. He advised that this was not the case. The applicant indicated that if I listened to the tapes I would understand what the situation was. The applicant told me that he had received the tapes from the Tribunal but he had not got them any more. There was then considerable further discussion concerning some legal advice that the applicant may or may not have received and whether or not those proposing to advise him had obtained copies of the tapes and whether they had sent copies to him. After hearing from Mr Allanson on behalf of the respondent I decided that as it was likely that the tapes would be easily available I should listen to the tapes and then reconvene the hearing. I informed the applicant that I expected that he would listen to the tape too and that when he returned he would point out to me the matters about which he complained. In this regard there was some discussion with the applicant about the provision of Pro Bono legal assistance. The applicant declined such assistance.

13. When this matter came back for hearing before me on 11 April 2003 by way of telephone conference the applicant submitted that he did not have enough time to explain all his concerns to the Tribunal and that he was interrupted by the Tribunal. I accept that the hearing was short. It lasted approximately 29 minutes some of which time was taken up with introductions. The applicant gave his evidence through an interpreter so communication between him and the Tribunal was reduced by the necessity for interpretation. However, having listened to the tape I do not believe that it indicates that the Tribunal hurrying the applicant or denying him an opportunity to be heard. At the end of the hearing the Tribunal asked the applicant whether he wished to say any more. The applicant said only that he wished for a speedy result. He received a speedy result from the Tribunal and now complains about it. At the telephone hearing the applicant said that the Tribunal was picking up its papers as these remarks were being made and he thought that he had no chance to say anything further. That is not evident from the tape although it may well be the case.

14. The second hearing before me was not confined to these issues. The applicant took the opportunity to repeat his incomprehension that the Tribunal could come to a view that it was safe for him to return to Afghanistan. This is an incomprehension which is easy to understand. Only this week I heard on the ABC AM program two distinguished and prominent journalists who had recently been inside Afghanistan confirming what is now notorious, that the writ of President Karzai runs no further than Kabul. One of the journalists advised that Mr Karzai is known as "the mayor of Kabul." Responsible media reporting of rampant warlordism and continuing human rights abuses in Afghanistan must strike fear into the hearts of unsophisticated and ill educated persons from rural areas of Afghanistan who are currently detainees.

15. The Tribunal relied on its country information to come to different views to those of the applicant about his safety. If the Tribunal is mistaken it is a mistake made within jurisdiction and not one which is the subject of review.

16. The applicant also argued that the Tribunal was mistaken as to its interpretation of the feud with the local commander. The applicant argued that if one is in a feud with a commander, then one is also in a feud with all those people that the commander controls. But even if this is accepted as evidence that the applicant would not be protected from this type of persecution by the state law enforcement apparatus it would still fall outside the Convention because of the finding by the Tribunal that the dispute was family related. At [CB 130] it states:

&q;
uot;The Tribunal has considered the applicant's concerns the he might be harmed by a rival for his wife's hand and that this rival has been a commander in the Wahdat forces. The Tribunal finds that any harm the applicant might suffer as a result of this would be of personal animosity and not for a Convention reason."

17. It was open to the Tribunal on the material before to come to the conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason (Abebe v Commonwealth of Australia (1999) 197 CLR 510).

18. For this court to impute an error of law on the basis that the Tribunal came to this conclusion after having met its procedural obligations, would require an over-zealous scrutiny of its reasons with an eye too keenly attuned to the perception of error. (per Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Ethnic Affairs v Wu Shan Liang (1996) 185 CLR at 272).

19. In VBAC v Minister for Immigration [2003] FCA 205 Ryan J looks at the application of two recent High Court decisions, Re Minister for Immigration & Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002 [2003] HCA 1 and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, in particular, the limited circumstances in which a denial of procedural fairness will be held to be a jurisdictional error. At [28] he states:

"In this limited sense, a denial of procedural fairness can constitute jurisdictional error, but not every case will disclose such a denial. What is required is more than an infraction of a rule of natural justice; it is a failure to exercise a jurisdiction, which the Tribunal was bound to exercise, in the manner in which it was bound to do so."

20. In Minister for Immigration v Khawar [2002] 187 ALR 574 Gleeson CJ found at [31]:

"Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state."

But my reading of the case indicates that before an applicant can claim refugee status arising out of the state's failure to protect him or her the initial persecution must be for a Convention reason. In Khawar the applicant proposed to prove (because she had not done so by the time the matter reached the High Court) that she was a member of a particular social group. In the instant case the applicant has not made that allegation and it seems to be one that would be difficult for him to make.

21. In the circumstances of the present case before me, I have been unable to determine any failure by the Tribunal comply with a statutory requirement or any excess of an express or implied limitation. The Tribunal assessed the integers of the applicant's claim (see Paul v Minister for Immigration [2001] FCA 1196 at 79), ultimately coming to the conclusion that the applicant did not have a well-founded fear for Convention reasons and was not a person that Australia owed protection. Consequently, I cannot find that there has been a denial of procedural fairness or natural justice so fundamental as to put the decision of the Tribunal outside the confines of s.474 as expressed in S134/2002 and Plaintiff S157/2002.

22. The application cannot succeed. I dismiss it. I order that the applicant pay the respondent's costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.


I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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